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STATES vs. TERRITORIES. 



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A^ TRUE SOLUTION" 



TERRITORIAL QUESTION. 



BY AN 



OLD LINE WHIG. 



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AUGUST 15, 1860. 






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STATES vs. TERRITORIES. 



It may j)erbaps relieve, to some extent at least, the writer of this 
article from the charge of presumption in setting forth in a formal 
manner his views on the important subject of the Territories of the 
United States, when it is considered that his opinions formerly and 
at the present time have been considered of sufficient importance 
to be the subject of comment from very respectable persons, both 
in public speeches and the newspaper press. 

It is certainly with no partisan purpose that this communication 
has been prepared, or is published ; but the hope is, by a reference 
to the views and practice of the fathers, to aid in effecting a solu- 
tion of this agitating and important question. 

Although so much has recently been said and written in rela- 
tion to the territorial governments of the United States, there is 
one view of the subject which has not, in my opinion, been as 
distinctly and prominently brought forward as it deserves to be. 

The course which has been pursued by Congress from time to 
time since the adoption of the Federal Constitution, has been one 
of constant change and uncertainty. It has been governed by no 
uniform principle, and has been at all times and in every instance 
a manifest departure from those principles which formed the basis 
of the original cessions by the different States — from the views 
entertained by the members of the old Congress prior to the adop- 
tion of the Constitution — from the purposes and intentions of the 
members of the Convention which formed the Constitution — and 
from the manifest purport and entire scope, as well as the positive 
provisions of the Constitution itself. 

It is manifest that these are the sources, not only to which 
we can best resort to learn the intentions of the early founders 
of the government and framers of the Constitution, but that they 
furnish the conclusive evidence on this subject. It is the j^resent 
purpose, not only to show what were in fact the plans and pur- 
poses of the fathers, and that they were the wisest and best plans, 
but that these and these alone were in actual harmony with the 



^/^^j^r 



provisions of the Constitution, and that the instrument was framed 
in reference to them. 

In order to avoid any misconception as to the views of the writer 
in relation to the poiver of Congress under the existing state of things 
in the Territories of the United States, he has no hesitation not only 
in admitting, but in contending that Congress possesses the power 
under the Constitution of legislating in relation to the territory of 
the United States, however acquired, whether by cession from the 
States themselves, by treaty from foreign powers, or by conquest. 
This power it possesses from the very nature of the case, and as 
one of the necessary incidents of the power of acquiring territory, 
which power must exist in any nation ; and as a necessary result 
of this proposition, there cannot be any such thing as an inherent 
sovereignty in the people who may reside in a territor}^ or tract of 
country belonging to the Federal government prior to the forma- 
tion of a State. Nothing but the strongest party feeling and the 
most extreme opinions on an exciting subject could ever have led 
large bodies of men to adopt as political platforms the two contrary 
but most fallacious propositions — one that Congress possesses the 
power to pass laws to exclude slavery from a territory, but no 
power to admit it — and the other that Congress has the power 
alone of admitting and protecting, but not of excluding it. With- 
out stopping to examine these two propositions, or either of them, 
which does not fall within the purpose of this article, it must be 
apparent to any fair and unprejudiced person that there can be no 
such limit to the poiver of legislation by Congress in relation to 
the Territories. 

If it exists at all, it must be a general power ; if to admit, it 
must also be to exclude slavery, and vice versa. 

The foregoing views as to the poiver of Congress have been, 
until within a few years, not only the universal sentiment of the 
countr}^, but fully sustained by the action of every department of 
the government. Every writer of distinction on the Constitution 
has laid down with more or less distinctness and force the doctrine 
of the power of legislation by Congress for the Territories, In 
addition to the decisions of the Supreme Court of the United 
States, which have been often cited, it is necessary now to cite 
only the very strong language of that Court in the opinion of the 
Court, given by the late Mr, Justice Daniel, in the very recent 
case of Miners' Bank vs. State of Iowa, (12 Howard, 7.) 

" It seems to us that the control of these Territorial govern- 
ments properly appertains to that branch of the government which 



creates and can cliange or modify them to meet its views of public 
policy, viz : the Congress of the United States." 

It has been thought proper, the more distinctly to present what 
is deemed the sound and unassailable view as to the poicer of Con- 
gress over the Territories^ and not only to admit but t ) insist upon 
the existence of such power in Congress, because the purpose is to 
show that the true and wise policy of the government is to intrust 
the matters pertaining to their internal affairs to the local govern- 
ments by whatever name they are called ; that in no other way 
can the purpose and intention of the fathers of the country and 
the framers of the Constitution be carried out; and that the truest 
and most perfect remedy is furnished not only by imbibing the 
spirit of the founders of the government, but by adopting their 
very acts, and forming States instead of Territories. Indeed, the 
object of the present article is to show what were the views of all 
connected with the organization of the government, both in the 
Congress of the Confederation and the Convention which formed 
the Constitution ; that the Constitution itself is in harmony with 
such views and plans ; that the departure from their plain and 
simple policy has led to all our troubles, and that a return to those 
ancient paths would lead us to harmony and safety, 

II. Before and at the time of the adoption of the Constitution 
of the United States, it was never in the contemplation of Con- 
gress to establish territorial governments in the manner and on 
the basis now adopted ; but when any subdivision was to be 
made of the land or territory beyond the limits of the old States, 
the course which met the universal assent, and which was adopted, 
was the formation of ^^ neiv States^^'' without any intermediate terri- 
torial existence or pupilage — that these States should possess all 
the powers in their local aftairs that all the other States possessed, 
should elect their own officers and enjoy all the attributes of sov- 
ereign States, but should not have the power of representation in 
Congress until they contained a specified number of inhabitants. 

In the debates, resolutions, ordinances and acts of every kind of 
the old Congress, commencing in the year 1774 and continuing to 
the adoption of the Constitution of the United States in 1789, con- 
tained in the printed volumes of the Journals ; and in the very 
full and accurate reports of the debates of the Convention which 
framed the Constitution, furnished by Mr. Madison, there is not 
one sentence or word which gives the least countenance to the 
idea of the formation of any such communities as are now organ- 
ized under the name of Territories. The word " territory " is 



occasionally used, but always in its ordinary sense, as a tract of 
land or region of country. On the contrary, tlie entire scope 
and purpose of the various resolutions, amendments and debates 
is, by implication at least, opposed to any such organizations or 
any similar organizations except as States. 

First. The resolutions of the old Congress show clearly the 
view taken on this subject. 

The resolution of the 10th of October, 1780, declared " That 
the unappropriated lands that may be ceded or relinquished to the 
United States by any particular State, pursuant to the recommen- 
dation of Congress of the 6th day of Septeml^er last, shall be disposed 
of for the common benefit of the United States and be settled and 
formed into distinct rejmhlican States^ which shall become members of 
the Federal Union and have the same rights of sovereignty^ freedom and 
independence as the oilier Slates, that each State, which shall be so 
formed, shall contain a suitable extent of territory, not less than 
one hundred nor more than one hundred and fifty miles square, or 
as near thereto as circumstances will admit, &c." (6 Journals of 
old Congress, p. 213.) 

On the 1st of May, 1782, a committee consisting (7 Journals, 
p. 367) of Messrs. Boudinot, Yarnum, Jenifer, Smith and Liver- 
more, to whom was committed a report on the cessions of New 
York, Yirginia, Connecticut, &c., reported, recommending the 
adoption of the following among other resolutions : 

^^Eesolved, That whenever the United States in Congress assem- 
bled shall find it for the good of the Union to permit new settle- 
ments on unappropriated lands, they will erect a new /State or 
States, to be taken into the Federal Union in such manner that no 
one State so erected shall exceed the quantity of one hundred and 
thirty miles square, and that the same shall be laid out into town- 
ships of about six miles square." 

" Resolved, That whenever such new States shall be erected, that 
the bona fide settlers within the same, at the time of the erection of 
such States, shall be confirmed in their respective titles to their 
reasonable settlements on the same terms as shall be allowed to 
other new settlers." 

In relation to the cession b}^ Yirginia, of her western territorj-, 
there is much in the action of Congress bearing on this subject, 
but we confine ourselves only to the following : 

On the 2d day of January, 1781, the Legislature of Yirginia 
adopted a resolution, " that they wou.ld yield to the Congress of 
the United States for the benefit of said States, all right, title and 



<;laim which the said Commoiiwealth hath north-west of the river 
Ohio upon the following conditions." 

The first of these conditions was : — 

"1. That the territory so ceded should be laid out and formed 
into States, containing a suitable extent of territory, not less than 
one hundred nor more than one hundred and fifty miles square, 
or as near thereto as circumstances will admit ; and that the States 
-SO formed, should be distinct republican States, and admitted 
members of the Federal Union, having the same rights of sove- 
reignty, freedom and independence as the other States." 

This act of the Legislature of Virginia having been referred to 
a committee of Messrs. Rutledge, Ellsworth, Bedford, Gorham 
and Madison, they made their report, which, on the 13th of Sep- 
tember, 1783, was adopted by Congress with but one dissenting 
'State. In this report the committee comment upon the different 
■conditions, and in relation to this, the first, they say, " that the 
first condition is provided for by the act of Congress of the 10th 
of October, 1780," in part quoted above. (8 Journals old Cong, 
p. 258.) 

And upon the 1st of March, 178-1, (9 Journals of Cong. p. 47) 
the deed of cession of Virginia was presented to Congress and 
adopted by that body. In this deed one of the conditions of the 
grant which had been agreed to by Congress was the one above 
■cited, and upon the express provision of which the cession was 
inade. 

On the 19th of the next month, (April 19, 1784,) " Congress 
took into consideration the report of the committee consisting of 
Mr. Jefferson, Mr. Chase and Mr. Howell, to whom was recommit- 
ted their report of a plan for a temporary government of the West- 
ern territorj^," (9 Journals, p. 98,) and after discussion and the 
adoption of various amendments, on the 23d of April adopted a 
very important provision for the government of the Western ter- 
ritory by a vote of every State except one, (9 Journals, p. 109-111.) 
This remained in force until the adoption of the celebrated ordin- 
ance of 1787. 

The resolution commences as follows : — 

" Resolved^ That so much of the territory ceded or to be ceded 
by individual States to the United States, or is already purchased 
or shall be purchased of the Indian inhabitants, and offered for 
sale by Congress, shall be divided into distinct States, in the fol- 
lowing manner, as nearly as such cessions will admit, that is to 
.say, &;c." 



6 

Then followed a description of the limits and boundaries of the 
States, and proceeds as follows : — 

" That the settlers on any territory so purchased and offered for 
sale, shall, either on their own petition or the order of Congress, 
receive authority from them with appointments of time and place 
for their free males of full age within the limits of their State to 
meet together for the purpose of establishing a temporary govern- 
ment, to adopt the Constitution and laws of any one of the ori- 
ginal States ; so that such laws nevertheless shall be subject to 
alteration by their ordinar}^ legislature; and to erect, subject to a 
like alteration, counties, townships or other divisions for the elec- 
tion of members for their legislature." 

This is the provision for the first stage of a " temporary govern- 
ment " for the new State. The resolution then proceeds as fol- 
lows : — 

"That when any such State shall have acquired 20,000 free 
inhabitants, on giving due proof thereof to Congress, they shall 
receive from them authority, with appointments of time and place, 
to call a convention of representatives to establish a permanent 
government and constitution for themselves ; provided, that both 
temporary and permanent governments be established on these 
principles as their basis." 

" 1st. That they shall forever remain a part of the United States 
of America." 

" 2d. That they shall be subject to the articles of Confedera- 
tion in all those cases in which the original States shall be so sub- 
ject, and to all the acts and ordinances of the United States in 
Congress assembled, conformably thereto." 

"3d. That they in no case shall interfere with the primary 
disposal of the soil by the United States in Congress assembled, 
nor with the ordinances and regulations which Congress may find 
necessary for securing the title in such soil to the bona Jide pur- 
chasers." 

" 4th. That they shall be subject to pay a part of the Federal 
debt, contracted or to be contracted, to be apportioned on them 
by Congress, according to the same common rule and measure by 
which apportionments thereof shall be made on the other States." 

" 5th. That no tax shall be imposed on lands the property of 
the United States." 

" 6th. That their respective governments shall be republican." 

" 7th. That the lands of non-resident proprietors shall in no 
case be taxed higher than those of residents within any new State^ 



before the admission thereof to a vote by its delegates in Con- 
gress." 

This was the second stage in the formation of the new States ; 
and in order to show that these " new States " were, not only in 
the very terms of the act, invested with all the powers of the 
original States in the management of their internal affairs, but 
that it was the express purpose and intention of Congress so to 
invest them, we have but to refer to the previous action of Con- 
srress on this resolution. 

The second of the above fundamental principles, as originally 
reported by the committee, was as follows : " Tlait tliey shall he sub- 
ject to the government of the United States in Congress assembled, and 
to the articles of Confederation, in all those cases in which the 
original States shall be so subject," &c. 

On the 20th of April (9 Journal, p. 99) a motion was made by 
Mr. Sherman, seconded by Mr. Ellery, to strike out the words — 
" to the government of the United States in Congress assembled, and^ 

On this question one State only voted against striking out, viz : 
Maryland, and three were divided. The words were stricken out, 
thus positively declaring that these new States in every stage 
should not be "subject to the government of the United States in 
Congress assembled," 

The resolution then proceeds as follows, to provide for the t]iird 
and last stage in the formation of these new States : 

"That whenever any of the said States shall have, of free 
inhabitants, as many as shall then be in any one of the least 
numerous of the thirteen original States, such State shall be admit- 
ted by its delegates into the Congress of the United States, on an 
equal footing with the said original States ; provided the consent 
of so many States in Congress is first obtained, as may, at the 
time, be competent to such admission. And in order to adapt the 
said articles of Confederation to the state of Congress, when its num- 
bers shall be thus increased, it shall be proposed to the legislatures 
of the States, originally parties thereto, to require the assent of 
two-thirds of the United States in Congress assembled, in all those 
cases wherein by the said articles the assent of nine States is now 
required, which being agreed to by them, shall be binding on the 
new States ; until such admission by their delegates in Congress, 
any of the said States, after the establishment of their temporary 
government, shall have authority to keep a member in Congress, 
with the right of debating but not of voting." 

The next clause in the resolution is as follows, viz : 



8 

" That measures not inconsistent with the principles of the Con- 
federacy and necessary for the preservation of peace and good 
order among the settlers in any of the said new States, until they 
shall assume a temporary government as aforesaid, may from time 
to time be taken by the United States in Congress assembled." 

The action of Congress in relation to this clause is very signifi- 
cant, and shows very clearly and precisely tbe views of Congress 
on this subject. 

The entry in the Journal is as follows : (9 Journal, p. 108.) 

" Congress resumed the consideration of the report of a commit- 
tee on a plan for a temporary government of the Western terri- 
tory." 

A motion was made by Mr. Gerry, seconded by Mr. William- 
son, to amend the report by " inserting after the words, ' but not 
of voting,' the following clause:" 

[Here followed the above clause, which was adopted as a part 
of the resolution, which finally passed.] 

" A motion was made by Mr. Eead, seconded by Mr. Spaight, 
to postpone that amendment in order to take up the following : — 

" That until such time as the settlers aforesaid shall have 
adopted the Constitution and laws of some one of the original 
States as aforesaid, for a temporary government, the said settlers 
shall be ruled by magistrates, to be appointed by the United 
States in CongTess assembled, and under such laws and regulations 
as the United States in Congress assembled shall direct." 

"On the question to postpone for the purpose aforesaid, the 
yeas and nays being required by Mr. Eead," (but two States 
voted in the affirmative, and three were divided,) so the question 
was lost and the amendment of Mr. Gerry was adopted. 

It thus clearly appears, 

1. That none of the members — neither those in favor of Mr. 
Gerry's proposition, which was adopted, nor of Mr. Eead's, which, 
was rejected, were in favor of any control in the "new States" by 
Congress whatever after the very first stage of the " temporary 
government." 

2. That it was only because it was " necessary," before the 
establishment of any local government, " for the preservation of 
peace and good order " that Congress should take "measures," &c. 

3. And that this temporary authority by Congress should con- 
tinue only "until they shall assume a temporary government," 
and shall then cease. 

The resolution then concludes as follows, viz : — 



9 

"That the preceding articles shall be formed into a charter of 
compact ; shall be duly executed by the President of the United 
States in Congress assembled, under his hand, and the seal of the 
United States ; shall be promulgated and shall stand as funda- 
mental constitutions between the thirteen original States, and eacli 
of the several States now newly described, unalterable from and 
after the sale of any part of the territory of such State, pursuant to 
this resolve, but by the joint consent of the United States in Con- 
gress assembled, and of the particular State within which such 
alteration is proposed to be made." 

The portions of the ordinance of 1784, separately quoted above, 
embrace the entire provisions of that ordinance, except that part 
in which is described the limits and boundaries of the new States. 

As the cession by Virginia had been completed before the adop- 
tion of this resolution, and as it remained in force until expressly 
repealed by the ordinance of 13th July, 1787, it was entirely com- 
petent for any body of men in any part of the territory defined 
and marked out for new States to have organized under its pro- 
visions, and if they had done so, they would to this day have been 
a State or States of the Union, with all the rights of the original 
thirteen States. That such organizations were not made, is doubt- 
less owing to the fact that the population in the new country was 
very small and sparse. 

In order further to show that it was the uniform and unchange- 
able purpose of the old Congress that " new States " should in the 
first instance be formed out of the newly acquired territory, refer- 
ence may be had to the action of Congress in July, 1786. 

After a full discussion and the adoption of amendments, it was 
resolved to recommend to Virginia to consent to revise its act of 
cession so as to change the boundaries, and to leave it to Congress 
to define from time to time the boundaries of the new States, and 
to fix the number of them. In these amendments, and in the 
resolution as finally adopted, these incipient organizations are uni- 
formly spoken of as " neiu Staies,^^ as " distinct republican SMes" 
^^ which States shall hereafter become members of the Federal Union, 
and shall have the same rights of sovereignty, freedom and inde- 
pendence as the original States," &c. 

On the 7th of July, 1786, there is the following entry in the 
Journal, (11 Journal, p. 97): — 

" Congress took into consideration a report of a grand commit- 
tee, to whom, among other things, was referred a motion of Mr. 
Monroe, respecting the cession of Western territory and forming 



10 

the same into States, and the committee having submitted that it be 
resolved, ' That it be recommended to the States of Massachu- 
setts and Virginia to take into consideration their acts of cession, 
and revise the same so far as to empower the United States in 
Congress assembled, to make such division into States of the ceded 
lands and territory as the situation of the country, and future cir- 
cumstances may require ; with this limitation and condition, how- 
ever, that all the territory of the United States, lying Nortli-west 
of the river Ohio shall be formed into a number of States, not less 
than two nor more than five, to be admitted into the Confederacy 
on the principles and in the forms heretofore established and pro- 
vided.' " 

A motion was made bj' Mr, Grayson to postpone the considera- 
tion of this report, in order to take up a substitute offered by him 
for this resolution. This substitute provided for a more particular 
description of the States to be formed, &c., but the motion did not 
prevail. 

Other amendments were proposed, on which the yeas and nays 
were taken, and after the adoption of some of them, a preamble 
and resolution was finally adopted. 

The preamble relates entirely to the size and boundaries of the 
States specified in the resolution of October, 1780, and in one of 
the conditions to the cession of Virginia and to the expediency of 
leaving to Congress to fix the boundaries of the new States, and 
closes as follows : — 

"In order, therefore, that the ends of government may be 
attained, and that the States which shall be formed may become a 
speedy and sure accession of strength to the Confederacy, Be- 
solved, That it be, and hereby is, recommended to the legislature 
of Virginia, to take into consideration their act of cession, and to 
revise the same, so far as to empower the United States in Con- 
gress assembled to make such a division of the territory of the 
United States lying northerly and westerly of the river Ohio into 
distinct republican States, not more than five, nor less than three, 
as the situation of that country and future circumstances may re- 
quire ; which States shall hereafter become members of the Fed- 
eral Union, and have the same rights of sovereignty, freedom and 
independence as the original States, in conformity with the reso- 
lution of Congress of the 10th of October, 1780." 

It was in relation to these questions, and at the ver}^ time when 
they were under discussion, that Mr. Jefferson wrote at length to 
Mr. Monroe, in a letter dated on the 9th July, 1786, and concludes 
as follows : — 



11 

" We bad better, theu, look forward and see what will be the 
probable course of things. This will surely be a division of that 
country into States of a small, or at most of a moderate size. If 
we lay them oft" in such they will acquiesce ; and we shall have 
the advantage of arranging them so as to produce the best combin- 
ations of interest. What Congress have already done in this mat- 
ter is an argument the more in favor of the revolt of those States 
against a different arrangement and of their acquiescence under a 
continuance of that. Upon this plan ive treat them as fellow citizens ; 
they will have a just share in their own government ; they will 
love us and pride themselves in a union with us. Upon the other 
we treat them as subjects ; we govern them and not they them- 
selves ; they will abhor us as masters, and break off from us in 
defiance. I confess to you that I can see no other turn that these 
two plans would take." 

After the passage of this resolution, in July, 1786, there was 
no action in Congress on this subject, of any importance, until the 
13th Jul}', 1787, when " an ordinance for the government of the 
territory of the United States north-west of the Ohio river " was- 
adopted. 

With regard to this ordinance of 1787, it is manifest from the 
previous legislation, the action of Virginia and from the instru- 
ment itself, that it was designed as a temporary provision for an 
immense territory or tract of country, and evidently anticipated 
that the smaller subdivisions of that territory would be only 
under the organization of States. It was adopted from the neces- 
sity, or supposed necessity of the case, and evidentlj^ did not con- 
template any such class of communities as now go under the name 
of Territories. Neither prior to that ordinance, nor in the ordin- 
ance itself, is that word once found with any such meaning, nor in 
all the debates or resolutions of Congress. 

The ordinance provides that " the taxes for paying their propor- 
tion (of the debts and expenses of the government) shall be paid 
and levied by the authority and direction of the legislatures of the 
district or districts, or new States, as in the original States," &c. 

" The legislatures of these districts or new States shall never 
interfere with the primary disposal of the soil," &c. 

The -Ith article provides that " there shall be formed in the said 
territory not less than three nor more than five States," and fixes 
the boundaries, reserving the right to alter them ; but it is the 
boundaries of " >S?«/es " that are so fixed ; incipient and unorgan- 
ized indeed, but still they were regarded as States, certainly not at 



12 

the time either providing for or contemplating the formation of 
any mongrel community called a Territory. 

It was also expressly provided that, " whenever any of the said 
States shall have 60,000 free inhabitants therein, such State shall 
be admitted by its delegates, into the Congress of the United 
States on an equal footing with the original States in all respects 
whatever, and shall be at liberty to form a permanent government 
and State Constitution," &c. Thus speaking of them and treating 
them as States before they shall have acquired the requisite popu- 
lation to entitle them to a representative in Congress. 

The very ordinance fixes the boundaries of the new States, not 
to take eifect at a remote period, but "as soon as Virginia shall 
alter her act of cession, and consent to the same." 

This ordinance was based, as it must necessarily be, upon the 
conditions of the deed of cession of Virginia, which were agreed 
to by Congress. The first of these has been already quoted. It 
provided "that the territory so ceded should be laid out and 
formed into States, containing," «&c., " and that the States so 
formed should be distinct republican states, and admitted mem- 
bers of the Federal Union, having the same rights of sovereignty, 
freedom and independence as the other States." 

The act of Virginia on this subject is as follows : — 

" Whereas, the United States in Congress assembled did, on the 
seventh day of July, in the year of our Lord one thousand seven 
hundred and eighty-six, state certain reasons, showing that a di- 
vision of the territory which had been ceded to the said United 
States by this Commonwealth, into States, in conformity to the 
terms of cession, should the same be adhered to, would be attended 
with many inconveniences, and did recommend a revision of the 
act of cession, so far as to empower Congress to make such a 
division of the said territory into distinct and republican States, 
not more than five nor less than three in number, as the situation 
of that country and future circumstances might require ; and the 
said United States in Congress assembled have, in an ordinance 
for the government of the territory north-west of the river Ohio, 
passed on the thirteenth of July, one thousand seven hundred and 
eighty-seven, declared the following as one of the articles of com- 
pact between the original States and the people and States in the 
said territory, viz :" 

[Here the 5th article of the compact of the ordinance of Con- 
gress of 13th July, 1787, which relates only to the number, boun- 
daries and population of the new States is copied verbatim.] 



13 

" And it is expedient that this Common wealth do assent to the 
proposed alteration, so as to ratify and confirm the said article of 
compact between the original States and the people and States in 
the said territory." 

" 2. Be it therefore enacted by the General Assembly, that the 
afore-recited article of compact between the original States and the 
people and States in the territory north-west of Ohio river, be, and 
the same is hereby ratified and confirmed, anything to the con- 
trary, in the deed of cession of the said territory by this Common- 
wealth to the United States, notwithstanding." 

III. The provisions of the Constitution of the United States 
are in perfect harmony in every respect with the previous and 
concurrent legislation of Congress, and are wholly inconsistent 
with the idea of any such political organizations as are now called 
Territories. No political organizations were contemplated or pro- 
vided for except States. 

The Convention that formed the Constitution commenced its 
session at Philadelphia on the 14th May, 1787, and closed its 
labors on the 17th September of the same year. 

When it commenced its session the ordinance of 178-4 was in 
full force, providing for the formation of States out of the territory 
ceded and to be ceded. 

As has been already observed, it will be seen by a careful peru- 
sal of Mr. Madison's report of the acts and debates of the Conven- 
tion, that not in one instance is the word territory used in refer- 
ence to any organized political community but in its ordinary 
sense as a tract or region of country ; and not only is the word not 
used, but no such organization as the modern one of territory is 
once referred to under any name. There is a very large number 
of provisions in tlie Constitution in relation to /States, which are 
equally necessary for and equally applicable to the Territories as 
now organized, if any such organizations had ever been contem- 
plated by the framers of the Constitution ; but in all these cases 
States and States alone are mentioned, and no provision whatever 
is made in relation to territories or any other organized political 
body except States. Some of these will be mentioned. 

In the 4th article it is provided that, " Full faith and credit 
shall be given in each state to the public acts, records and judicial 
proceedings of every other State." 

And in the 2d section of the same article : — 

"The citizens of each state shall be entitled to all privileges and 
immunities of citizens in the several states^ 



f4 

Again, with regard to the delivery of fugitives from justice, the 
same section provides : — 

" A person charged in any state with treason, felony or other 
crime, who shall flee from justice, and be found in another state, 
shall, on demand of the executive authority of the state from 
which he fled, be delivered up, to be removed to the state having 
jurisdiction of the crime." 

The same is the provision with regard to fugitives from labor 
and service in the same section : — 

" No person held to service and labor in one state, under the 
laws thereof, escaping to another, shall, in consequence of any law 
or regulation therein, be discharged from such service or labor, 
but shall be delivered up on claim of the party to whom such ser- 
vice or labor may be due." 

Again the 3d section provides for the formation of new States. 
The whole provision on this subject is as follows : 

"New States may be admitted by the Congress into the Union ; 
but no new State shall be formed or erected within the jurisdiction 
of any other State; nor any State be formed by the junction of 
two or more States, or parts of States, without the consent of the 
legislatures of the States concerned, as well as of Congress." 

There is nothing in this provision which prevents the formation 
of new or incipient States, as provided for in the plan of Mr. Jef- 
ferson, in 1784, and which was in force for more than three years. 

The Constitution also provides that the United States shall pro- 
tect each state from invasion ; that the Constitution and laws shall 
be the supreme law of the land, "and the judges in every state 
shall be bound thereby." The members of the state legislatures 
and the executive and judicial officers of the " several states " shall 
be bound by oath or affirmation to support the Constitution, &c. 

Again, no provision whatever is made in the Constitution for 
the imposition or collection of direct taxes, except from the States 
alone. The provision is, " Eepresentatives and direct taxes shall 
be apportioned among the several States which may be included 
within this Union, according to their respective numbers," &c. 

And in the 6th amendment to the Constitution, which was pro- 
posed about the time of its adoption, it was provided : — 

"In all criminal prosecutions, the accused shall enjoy the right 
to a speedy and public trial, by an impartial jury of the state and 
district wherein the crime shall have been committed, which dis- 
trict shall have been previously ascertained by law," &c. 

In relation to the judicial power of the Union, it extends to 



15 

controversies between hvo or more states ; between a state and cit- 
izens of another state ; between citizens of different states ; between 
citizens of the same state^ claiming lands under grants of different 
states^ and between a state^ or the citizens then^of^ and foreign states, 
citizens or subjects." 

The difficulties arising from the omission of any provision for 
territories has led to a number of judicial decisions on the sub- 
ject by the United States, and in some cases a remedy has been 
sought by legislation ; as to some of them, however, there seems 
to be no remedy. 

There is a recent case decided by the Supreme Court which 
may be quoted in illustration : — 

Miners' Bank vs. State of Iowa. (12 Howard, 1, marginal note.) 
"Where a bank was chartered and its charter repealed by the 
legislature of a Territory, the question of the validity of the re- 
pealing act cannot be brought before this Court under the 25th 
section of the Judiciary Act." 

" The power of review is confined by that section to certain laws 
passed by States, and does not extend to those passed by territorial 
legislatures." 

Daniel, J., in opinion of Court, p. 7 : — "If the question whether 
a writ of error would lie from this Court to review the acts of the 
territorial governments, could ever have been regarded as in any 
sense equivocal upon the language of the 25th section of the Ju- 
diciary Act, such a question could not now be considered as open, 
under the express adjudications previously ruled by this Court. 
Thus in the case of Scott I's-. Jones, (5 Howard, p. 243,) it was 
expressly declared — 

' That an objection to the validity of a statute on the ground 
that the legislature, which passed it, was not competent or duly 
organized, under the acts of Congress and the Constitution, so as 
to pass valid statutes, is not within the cases enumerated in the 
25th section of the Judiciary Act, and therefore this Court has no 
jurisdiction over the subject. That in order to give this Court 
jurisdiction, the statute, the validity of which is drawn in question, 
must be passed by a state^ a member of the Union, and a public 
body owing obedience and conformity to its Constitution and laws. 
That if public bodies, not duly admitted into the Union, under- 
take, as States, to pass laws which might encroach on the Union 
or its granted power, such conduct would have to be reached 
either by the power of the Union to put down insurrection, or b}' 
the ordinary penal laws of the States or Territories within which 



16 

these bodies are situated and acting ; but their measures are not 
examinable bj this Court upon a writ of error. They are not 
states and cannot pass statutes within the meaning of the Judiciary 
Acts.' Other cases cited by the court, in the opinion just quoted, 
might be adduced to show the difference even taken by the Court 
in reference to its relation to the States as States, and as contra- 
distinguished from the Territories of the United States. It seems 
to us, that the control of these territorial governments properly 
appertains to that branch of the government which creates and 
can change or modify them to meet its views of public policy, 
viz: the Congress of the United States," &;c. 

It thus appears by the unanimous decision of the Supreme Court 
that in such a case as this there is no peaceable and judicial 
redress by the United States in case of a wrongful legislation by a 
Territory, " which might encroach on the Union or its granted 
powers," but that "such conduct would have to be reached either 
by the power of the Union to put down insurrection, or by the 
ordinary penal laws of the States or Territories within which these 
bodies are situated and acting," &c. 

In opposition to this weight of authority, the only provision in 
the Constitution on which this claim of authority, in relation to 
territories rests is in the 3d section of the 4th article, as follows : — 

" The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States ; and nothing in this Con- 
stitution shall be so construed as to prejudice any claims of the 
United States, or of any particular State." 

This is the only instance in which the word territory is used in 
the Constitution, and a reference to the debates in the Convention 
clearly shows that the organization of any such political commu- 
nity or territory was never in the contemplation of the Conven- 
tion. We refer to some of the most important points on this ques- 
tion: 

On the 18th of August, 1787, (5 Elliott, p. 439,) " Mr. Madison 
submitted, in order to be referred to the Committee of Detail, the 
following powers as pro|)er to be added to those of the general 
legislature : 

" To dispose of the unoccupied lands of the United States." 

"To institute temporary governments for new States arising 
therein." 

These and other propositions of Mr. Madison were referred to a 
committee, of which Mr. Kutledge was chairman, who, on the 22d 



t3 



■17 

ol' August, reported that in their opinion the following slioukl be 
added °viz : (5 Elliott, 462.) 

" At the end of the 16th clause of the 2d section of the seventh 
article : ' And to provide, as may become necessary from time to 
time, for the well-managing and securing the common inoperty and 
general interests and welfare of the United States in such manner 
as shall not interfere with the government of individual States in 
matters which respect their internal police, or for which their 
individual authority may be competent.' " 

This proposition was not embraced in the Constitution in the 
form presented by the committee, and nothing further is heard 
from it, but, by referring to the various speeches and amendments 
found in the 5 Elliott, from pages 492 to 497, it will be perfectly 
manifest that nothing was further from the thoughts of all the 
members of the Convention than the idea of giving to this word 
territory any other than the usual meaning of property or a tract 
of land. 

From the foregoing it appears — 

1. That in all the debates and resolutions of the old Congress 
the word territory is not used except as a descri[)tion of property 
— public land — and that it was never in the contem})lation of a 
single member of that body that any other political community 
should be organized out of the newly acquired territory except as 
States. 

2. That immediately after the cession by Virginia of her west- 
ern territory, an ordinance was adopted with great unanimity, for 
the organization of States in the newly acquired territory, and that 
which should be subsequently acquired, by the provisions of 
which the inhabitants within the limits prescribed in the resolu- 
tion, might organize a State and adopt for their temporary gov- 
ernment the Constitution of any one of the old States ; when they 
attained to a population of 20,000, that they should adopt their 
own Constitution, and might send a delegate to Congress, who 
might debate but not vote, and when the population of the new 
State equaled that of the smallest of the original States, it was to 
be admitted into the Union on the same looting as the original 
States. 

3. The States which were thus formed were in every stu'jc to 
be sovereign in the management of their own allairs, and to adopt 
such a republican Constitution as the}'- might deem expedient, 
without the control of Congress. And this ordinance continued 
in force as the law of the laud fmiii the 2yd of April, 1761, until 



18 

the 13tli of July, 1787, more tlian tliree years, wlien it was 
expressly, and in terms, repealed by the ordinance of that date. 

4. That the ordinance of 1787 itself was merely a temporary 
provision for an immense unorganized territory, with but few 
inhabitants, and not only contemplated but provided for the 
organization of States within the territory or region to which 
the ordinance applied, and fixed the boundaries of such States, 
and recognized their existence as States before they should enjoy 
the full benefits of a representation in Congress, and be placed on 
" an equal footing with the original States in all respects what- 
ever," by attaining to the requisite population of 60,000. 

5. That in the record of the debates in the Convention for 
forming the Constitution of the United States, or the resolutions 
of that Convention, there is not to be found a single expression 
which countenances the idea of the organization of any communi- 
ties like the present territorial governments or any other organiza- 
tions except those of States. The word " territory^'' whenever it 
is used, is synonymous with a tract or region of country — public 
lands or public domain as now used, and never as a political 
society or organized community. 

6. In the Constitution of the United States the word territory 
is but once used, and then in the usual sense of that term, as above 
stated, and throughout the whole instrument. States are alone men- 
tioned, even when the provisions of the Constitution are in relation 
to subjects equally applicable to territories, if such organizations 
had been in the contemplation of Congress. The framers of that 
instrument evidently contemplated the organization of States 
alone. No provision is made for giving faith and credit to the 
public acts, records and judicial proceedings of any Territory in 
any other Territory or State, nor that the citizens of a Territory 
shall be entitled to all privileges or immunities in the several 
States. No provision is made in relation to fugitives from justice 
or from labor to or from a Territory — nor that the United States 
shall protect a Territory from invasion ; nor that the judges of a 
Territory shall be bound by the Constitution and laws, nor take 
any oath to support the Constitution. No provision is made for 
direct taxes in the Territories. The judicial power of the Union 
is confined entirely to States and the residents of States, and all 
criminal prosecutions must be in the State and district in which 
the offense was committed. It is impossible to believe that if any 
other organizations except those of States were in view of Con- 
gress, that in all these and other cases they should have been 
wholly omitted. 



19 

Such were the views of the fathers of the government and the 
founders of the Constitution ; and the inquir}^ arises whether 
experience has not shown that those views were wise, and their 
plan of governing the newly organized territory the bjst in itself, 
and the best adapted to, and most in harmony with, the provisions 
of the Constitution which was adopted in conformity with these 
views. 

Is it not manifest that if the ordinance of 1784, introduced by 
Mr. Jefferson, adopted by the old Congress and continued in force 
for more than two 3'ears, were now re-enacted, that it would furn- 
ish the best solution of the vexed questions in relation to the ter- 
ritories ? 

If the same powers were conferred on these neiv states as were 
conferred by that ordinance, all questions as to " squatter sove- 
reignty," " territorial sovereignty " and " non-intervention," and 
" Congressional intervention," would be settled at once and for- 
ever. All doubts or difficulties in relation to the return of fugi- 
tives from justice or fugitives from service from or to a territory 
would be solved; all questions in relation to the tenure of judicial 
office, the jurisdiction and powers of courts and judges, criminal 
and civil proceedings, and everything pertaining to the adminis- 
tration of justice under the Federal government in the territories 
would be at once settled in harmony with the spirit and pui-pose 
and in accordance with the actual provisions of the Constitution. 

The numerous difficulties, incongruities and omissions, the 
various and conflicting decisions of courts, the interminable con- 
troversies as to political power, have all arisen from the organiza- 
tion of political communities which were never contemplated by 
the framers of the Constitution, are not embraced in its provisions, 
and the existence of which are wholly inconsistent with the entire 
scope and purpose of that instrument and with the fundamental 
principles of the government, of which that Constitution is the 
organic law. 

If Congress were to adopt these general provisions and princi- 
ples of the ordinance of 1784, the question arises, what would prac- 
tically be the course to be pursued, and what would be the legisla- 
tion required ? 

1. No more territorial governments would again be organized. 

2. It would be the duty of Congress to fix the limits or boun- 
daries of the future States. 

3. Whenever, within tlie limits prescribed, there should be a 
population sufficient in numbers to require a local government 



20 

(saj 20,000 inhabitants or some other number to be fixed in ad- 
vance) the inhabitants of such incipient or new state to organize 
their own government and to have the privilege of sending a dele- 
gate to Congress with the power of debating but not of voting. 

4. Whenever such new state should have a population which 
would, under existing laws, be sufficient to entitle them to a repre- 
sentative in the House of Eepresentatives in Congress, such State 
should be admitted into the Union on an equal footing with the 
original States. 

4. The new or incipient States in every stage of their existence 
should form their own Constitutions and pass their own laws, and 
have all the powers and attributes of the other States, except a 
representative in Congress. 

With these general principles, the details in practice as to the 
mode of taking the census, the size and boundaries of the new 
States, the mode of calling the first Convention, &c., could, it is 
believed, without difiicultj be arranged. Whether the system 
should or should not at once be applied to the existing organized 
territories, within their present limits or other limits, would be a 
question of expediency. 

There would probably be no very serious difiiculty in adopting 
the new system in all territory of the United States without 
the limits of the States. If, however, it might be thought inexpe- 
dient to adopt a too sudden and radical change at once, the system 
might more gradually be introduced of organizing from time to 
time new States instead of Territories, out of the existing terri- 
tories, and the day would not be remote when there would not 
remain such an incongruous thing as a territorial government in 
the United States. 

An Old Line Whig. 

August 15, 1860. 



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